FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50350
Plaintiff - Appellee, D.C. No. 2:04-cr-00632-R
v.
MEMORANDUM *
RAUL MELENDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Raul Melendez appeals from the 24-month sentence imposed following the
revocation of supervised release, and new conditions of supervised release imposed
upon revocation. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Melendez contends, and the government agrees, that the case must be
remanded for resentencing because the district court failed to discuss the applicable
Guidelines range, and did not provide an adequate explanation for the sentence
imposed. We agree that the plain error test is met here because the district court
failed to properly calculate the Guidelines range, failed to provide an adequate
explanation for its decision to impose a sentence that was above the Guidelines
range, and failed to accurately and appropriately discuss the relevant factors under
18 U.S.C. §§ 3553(a) and 3583(e). See United States v. Carty, 520 F.3d 984, 991-
93 (9th Cir. 2008) (en banc); United States v. Hammons, 558 F.3d 1100, 1104-06
(9th Cir. 2009). We therefore vacate the sentence, and remand for resentencing to
allow the district court to calculate the applicable Guidelines range, and provide an
adequate explanation for its sentence. We further instruct the district court that any
gang-related conditions of supervised release imposed on remand comply with this
court’s precedent. See United States v. Soltero, 510 F.3d 858, 865-67 (9th Cir.
2007) (per curiam); United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010).
Melendez’s request to have the case reassigned to a different judge on
remand is denied. See United States v. Waknine, 543 F.3d 546, 559-60 (9th Cir.
2008).
VACATED and REMANDED for RESENTENCING.
2 10-50350